[Federal Register Volume 65, Number 80 (Tuesday, April 25, 2000)]
[Rules and Regulations]
[Pages 24322-24323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10134]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 26 and 52

[FAC 97-17; FAR Case 1999-301 (99-301); Item IV]
RIN 9000-AI52


Federal Acquisition Regulation; Utilization of Indian 
Organizations and Indian-Owned Economic Enterprises

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to delete DoD-unique 
language pertaining to incentive payments made to prime contractors for 
the utilization of Indian organizations and Indian-owned economic 
enterprises.

DATES: Effective Date: June 26, 2000. Applicability Date: The FAR, as 
amended by this rule, is applicable to solicitations issued on or after 
June 26, 2000.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAC 97-17, FAR case 1999-301.

SUPPLEMENTARY INFORMATION:

A. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register on October 27, 1999 (64 FR 57964). Six sources submitted 
comments in response to the proposed rule. The Councils considered all 
comments in the development of the final rule.
    Section 504 of the Indian Financing Act of 1974 (25 U.S.C. 1544) 
established the Indian Incentive Program. Annual DoD appropriations 
acts have restricted DoD payments under the Program to those 
contractors that submitted subcontracting plans pursuant to 15 U.S.C. 
637(d) and those contractors participating in the test program for 
comprehensive small business

[[Page 24323]]

subcontracting plans established by Section 854 of Public Law 101-189. 
Section 8024 of the DoD Appropriations Act for Fiscal Year 1999 (Public 
Law 105-262) eliminated the link between a DoD contractor's 
subcontracting plan requirement and the contractor's eligibility for 
participation in the Indian Incentive Program. This change now allows 
DoD to make incentive payments to small businesses that subcontract to 
Indian organizations or Indian-owned economic enterprises when the 
contract includes the clause at FAR 52.226-1, Utilization of Indian 
Organizations and Indian-Owned Economic Enterprises. This rule removes 
obsolete DoD-unique implementing guidance from the FAR. The Defense 
Acquisition Regulations Council is adding guidance to the Defense 
Federal Acquisition Regulation Supplement under a separate case to 
implement the change made in Section 8024 of Public Law 105-262.
    This rule was not subject to Office of Management and Budget review 
under Section 6(b) of Executive Order 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

B. Regulatory Flexibility Act

    The Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not have a significant economic impact on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq., because the rule merely deletes 
obsolete DoD-unique implementing guidance from the FAR. The rule will 
have no effect on small entities doing business with civilian agencies.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) does not apply because 
the changes to the FAR do not impose information collection 
requirements that require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 26 and 52

    Government procurement.

    Dated: April 13, 2000.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 26 and 52 as set 
forth below:
    1. The authority citation for 48 CFR parts 26 and 52 continues to 
read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 26--OTHER SOCIOECONOMIC PROGRAMS


26.101  [Amended]

    2. Amend section 26.101 as follows:
    a. In the definition ``Indian'', remove ``which'' and insert 
``that'' in its place;
    b. In the definition ``Indian-owned economic enterprise'', remove 
``shall constitute'' and insert ``constitutes'' in its place; and
    c. In the definition ``Indian tribe'', remove ``which'' and insert 
``that'' in its place.
    3. Revise section 26.104 to read as follows:


26.104  Contract clause.

    Contracting officers in civilian agencies may insert the clause at 
52.226-1, Utilization of Indian Organizations and Indian-Owned Economic 
Enterprises, in solicitations and contracts if--
    (a) In the opinion of the contracting officer, subcontracting 
possibilities exist for Indian organizations or Indian-owned economic 
enterprises; and
    (b) Funds are available for any increased costs as described in 
paragraph (b)(2) of the clause at 52.226-1.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Amend section 52.226-1 as follows:
    a. Revise the date of the clause;
    b. Remove paragraph (a);
    c. Redesignate paragraphs (b) through (d) as (a) through (c), 
respectively;
    d. In the newly designated paragraph (a):
    (1) Remove ``which'' from the definition ``Indian'' and insert 
``that'' in its place;
    (2) Remove ``shall constitute'' from the definition ``Indian-owned 
economic enterprise'' and insert ``constitutes'' in its place; and
    (3) Remove ``which'' from the definition ``Indian tribe'' and 
insert ``that'' in its place.
    e. Revise newly designated paragraphs (b) and (c).
    The revised text reads as follows:


52.226-1  Utilization of Indian Organizations and Indian-Owned Economic 
Enterprises.

* * * * *

Utilization of Indian Organizations and Indian-Owned Economic 
Enterprises (June 2000)

* * * * *
    (b) The Contractor shall use its best efforts to give Indian 
organizations and Indian-owned economic enterprises (25 U.S.C. 1544) 
the maximum practicable opportunity to participate in the 
subcontracts it awards to the fullest extent consistent with 
efficient performance of its contract.
    (1) The Contracting Officer and the Contractor, acting in good 
faith, may rely on the representation of an Indian organization or 
Indian-owned economic enterprise as to its eligibility, unless an 
interested party challenges its status or the Contracting Officer 
has independent reason to question that status. In the event of a 
challenge to the representation of a subcontractor, the Contracting 
Officer will refer the matter to the U.S. Department of the 
Interior, Bureau of Indian Affairs (BIA), Attn: Chief, Division of 
Contracting and Grants Administration, 1849 C Street, NW., MS 2626-
MIB, Washington, DC 20240-4000.
    The BIA will determine the eligibility and notify the 
Contracting Officer. No incentive payment will be made within 50 
working days of subcontract award or while a challenge is pending. 
If a subcontractor is determined to be an ineligible participant, no 
incentive payment will be made under the Indian Incentive Program.
    (2) The Contractor may request an adjustment under the Indian 
Incentive Program to the following:
    (i) The estimated cost of a cost-type contract.
    (ii) The target cost of a cost-plus-incentive-fee prime 
contract.
    (iii) The target cost and ceiling price of a fixed-price 
incentive prime contract.
    (iv) The price of a firm-fixed-price prime contract.
    (3) The amount of the adjustment to the prime contract is 5 
percent of the estimated cost, target cost, or firm-fixed-price 
included in the subcontract initially awarded to the Indian 
organization or Indian-owned economic enterprise.
    (4) The Contractor has the burden of proving the amount claimed 
and must assert its request for an adjustment prior to completion of 
contract performance.
    (c) The Contracting Officer, subject to the terms and conditions 
of the contract and the availability of funds, will authorize an 
incentive payment of 5 percent of the amount paid to the 
subcontractor. The Contracting Officer will seek funding in 
accordance with agency procedures.

(End of clause)

[FR Doc. 00-10134 Filed 4-24-00; 8:45 am]
BILLING CODE 6820-EP-P